The Judicial Commission of Inquiry formed by the President William Ruto to probe the Shakahola Massacre and religious organizations in the country will not proceed with the exercise after the High Court indefinitely suspended its work on Monday, May 22, 2023.
Justice Lawrence Mugambi of the Milimani High Court suspended the commission pending his ruling on a request by Azimio la Umoja - One Kenya coalition leader Raila Odinga to quash the President's decision to appoint the commission.
The judge is scheduled to deliver a ruling on Monday next week on whether it will grant the interim orders sought by Raila pending the hearing and determination of his lawsuit challenging the formation of the commission.
"Since the court is dealing with a question of serious consideration. I thus order in the meantime the status quo remain until Monday next week," Justice Mugambi ruled.
This means the commission chaired by Justice Jessie Lessit will not commence its work.
Members of the commission were sworn-in in at Milimani ceremonial hall early this month and were set to commence the probe into Shakahola Massacre and other religious organizations.
Presenting the case, Lawyer Paul Mwangi for the Azimio leader told the court that President Ruto acted in total violation of the constitution in picking members of the commission to probe Shakahola and other religious groups.
He said that the members of the commission should have been picked by the Judicial Service Commission with the assistance of Chief Justice Martha Koome.
Mwangi faulted the commission membership saying that the presiding judge will be exposed and subjected to ridicule at the close of the inquiry.
Citing the 2003 Goldenberg probe into the loss of Ksh160 billion, Mwangi informed the court that the then appellate judge Samuel Bosire ended up being kicked out of the Judiciary upon the conclusion of the probe.
He asked Justice Mugambi to protect the reputation of the current commission members by quashing a gazette notice on their appointment by President Ruto.
Mwangi further blasted the appointment of Justice Lessit saying she would draw double salary both from the Judiciary and the Executive.
"The position of Justice Lesiit compromises the Judiciary. She can now be paid by the executive directly while at the same time sitting in the judiciary, " Mwangi stated.
The lawyer further hinted there is opposition from the top officials from the Judiciary over the establishment of the commission.
Mwangi said that there are two agencies probing the same Shakahola death field incidents with one being led by the Senate committee Danson Mugathana and also the police investigating the same.
Azimio said that the move to have the executive pick another commission was ill-informed and aimed at wasting public funds and a cover-up.
"Senate has already commenced its hearings and we expect the commission to also conduct same hearing and make a judgment. The police have also started the investigations. Even when the constitutionally mandated bodies are working, the question is why the office of the president has taken these duties," Mwangi stated.
Defending the commission's appointment, the Attorney General through Emmanuel Bitta said that the President has powers to protect the life of Kenyans under the Bill of rights.
He added that the actions of the president are lawful and should not be faulted at all.
He asked the court to dismiss the Azimio petition for lack of merit.
However, Kenya National Human Rights Commission (KNHRC) on its side supported the move by Azimio Coalition leader Raila that the formation of the commission undermines its mandate.
"We are currently investigating human rights violations surrounding the Shakahola issue. Allowing a commission of inquiry to proceed will be undermining our mandate. Therefore we support the suspension of the proceedings until the matter is heard and determined," KNHRC informed the court.
The office of the Director of Public Prosecutions ( ODPP) on its part urged the court to be struck out from the proceedings on grounds that it was illegally sued.
"I pray that you strike us out as respondents in the matter. The DPP enjoys decisional independence whether or not to charge. The powers of the DPP cannot be usurped. The process is slightly different from the investigations by the police. The criminal investigative process is well underway. However, none of our officers are part of the commission. We do not understand we were enjoined as respondents," the public prosecutor told the judge.
In the case Azimio wants the court to issue conservatory orders suspending the commission from commencing the probe until their petition is heard and determined.
In the petition, Azimio leader Raila Odinga argues that it is unconstitutional for President Ruto to appoint the Justice Lessit-led commission on the Shakaola massacre to look into the matter.
The Azimio coalition party claims that Ruto usurped the powers of among others the Director of Public Prosecutions, the Judiciary and Parliament.
The Azimio Leader is seeking orders from the court for the commission of inquiry to be declared unconstitutional for infringing on the mandate of the Director of Public Prosecution (DPP), Independent Policing Oversight Authority (IPOA), Inspector General and Kenya National Human Rights Commission (KNHRC).